O'Brien v. O'Brien, 2004 Ohio 5881 (OH 11/2/2004)
| Decision Date | 02 November 2004 |
| Docket Number | Case No. 2003-CA-F12069. |
| Citation | 2004 Ohio 5881 |
| Parties | Theresa L. O'Brien, Plaintiff-Appellee, v. Mark K. O'Brien, Defendant-Appellant. |
| Court | Ohio Supreme Court |
Theresa L. O'Brien Pro Se, Lewis Center, OH 43035, 8710 Lazelle Commons Drive, for Plaintiff-Appellee.
Ralph A. Kerns, 6797 N. High Street, Suite 325, Worthington, OH 43085, for Defendant-Appellant.
Hon: W. Scott Gwin, P.J., Hon: William B. Hoffman, J., Hon: John F. Boggins, J.
{¶1} Appellant Mark K. O'Brien appeals from his divorce in the Delaware County Court of Common Pleas. Appellee Theresa L. O'Brien is appellant's former spouse. The relevant facts leading to this appeal are as follows.
{¶2} Appellant and appellee were married on July 13, 1985. On November 16, 2000, appellee filed a complaint for divorce. Appellant filed an answer and counterclaim on December 14, 2000. The trial was conducted before the magistrate over the course of three days in early December 2001. On January 3, 2002, the magistrates issued a decision recommending the granting of a divorce and, inter alia, disposition of real estate.
{¶3} On January 17, 2002, both appellant and appellee filed separate objections to the decision of the magistrate. On January 28, 2002, the magistrate issued an amended decision. Upon motion of the appellant, on May 10, 2002, the magistrate issued findings of fact and conclusions of law. On May 23, 2002, appellant filed objections to the magistrate's amended decision. Appellee did likewise on May 24, 2002. On July 17, 2002 the trial court ruled on the objections entering a Judgment Entry Adopting Magistrate's Decision of January 3, 2002 and Amended Magistrate's Decision of January 28, 2002.
{¶4} On September 24, 2002, the trial court sua sponte issued a Corrective Judgment Entry Adopting Magistrate's Decision of January 3, 2002; Amended Magistrate's Decision of January 28, 2002; and Second Amended Agreed Magistrate's Decision and Stipulation of the Parties of March 4, 2002.
{¶5} On July 17, 2002, the trial court issued a judgment entry adopting the magistrate's decision and amended decision. On August 2, 2002, appellant and appellee filed notice of appeal and a cross appeal in Case No. 02 CA-F-08-038.
{¶6} On June 4, 2003, this Court reversed and remanded this case to the trial court with instructions that the trial court must specifically state whether it is overruling or sustaining any, all, or part of any duly filed objections to a magistrate's decision, as per Civ.R. 53(E) (4) (b). See, O'Brien v. O'Brien (June 4, 2003), 5th Dist. No. 02 CA-F-08-038 at¶ 29.
{¶7} On November 17, 2003 the trial court entered a Judgment Entry Upholding Magistrate's Decision and Decree of Divorce. On December 10, 2003, appellant filed his notice of appeal, and herein raises the following eight Assignments of Error:
{¶8} "I. The court erred to the prejudice of the appellant abused its discretion in repeatedly permitting the appellee to introduce testimony for the purpose of attempting to show the bad character of the appellant in derogation of the ohio rule of evidence 608 (b).
{¶9} "II. The trial court erred to the prejudice of the appellant and abused its discretion by establishing spousal support without first considering all the factors as set forth in 3105.18 and 3105.171 and, in particular, the need of the court to consider the parties' position after the division of assets before considering the issue of the propriety of spousal support.
{¶10} "III. The court erred to the prejudice of the appellant abused its discretion in its determination of the level of income that the husband and wife should be found to make and in making a determination setting support on an imputed amount for husband without making a findng that the appellant was voluntarily underemployed.
{¶11} "IV. The court erred to the prejudice of the appellant abused its discretion by failing to divide the parties' assets and liabilities in an equitable fashion.
{¶12} "V. The court erred to the prejudice of the appellant and abused its discretion in finding that the appellant was in contempt for failing to comply with certain temporary orders.
{¶13} "VI. The court erred to the prejudice of the appellant and abused its discretion in its award of attorney's fees and accountant's fees.
{¶14} "VII. The trial court erred to the prejudice of the appellant and abused its discretion in adopting findngs of fact and conclusions of law that are not supported by the record and were nothing more than the proposed findings of the appellee.
{¶15}
{¶16} In his first assignment of error appellant maintains that the trial court abused its discretion by allowing the introduction into evidence of alleged extramarital affairs and specific instances of conduct of the appellant. We disagree.
{¶17} Appellant first argues that testimony concerning Deborah Lewis to the effect that he was engaged in an extramarital affair with her during the course of his marriage to appellee was error.
{¶18} Deborah Lewis was named as a third-party defendant in the appellee's divorce complaint filed November 16, 2000. (Magistrate's Findings of Fact and Conclusions of law, filed May 10, 2002 at ¶ 4-5). [Hereinafter "Findings of Fact']. Additionally, appellant did not object to the testimony concerning Ms. Lewis at the trial court level. (T. Dec. 3, 2001 at 27; 55-59). Accordingly, any complaints as to testimony concerning Ms. Lewis have been waived. Stores Realty Co. v. Cleveland (1975), 41 Ohio St.2d 41, 322 N.E.2d 629, Atwood v. Leigh (1994), 98 Ohio App.3d 293, 648 N.E.2d 548.
{¶19} The appellant, moreover, may not rely upon the "plain error" exception to the waiver rule. The plain error doctrine provides for the correction of errors clearly apparent on their face and prejudicial to the complaining party even though the complaining party failed to object to the error at trial. Reichert v. Ingersoll (1985), 18 Ohio St.3d 220, 223, 18 OBR 281, 284, 480 N.E.2d 802, 805; Schade v. Carnegie Body Co. (1982), 70 Ohio St.2d 207, 209, 24 O.O.3d 316, 317, 436 N.E.2d 1001, 1003. The plain error doctrine may be utilized in civil cases only with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice. Cleveland Elec. Illum. Co. v. Astorhurst Land Co. (1985), 18 Ohio St.3d 268, 275, 18 OBR 322, 327-328, 480 N.E.2d 794, 800.
{¶20} In the case at bar, the testimony concerning Ms. Lewis was originally introduced concerning the breakup of the marriage and the reasons for the parties' incompatibility. Moreover, the trier of fact is vested with the authority to weigh the evidence and assess the credibility of the witnesses. State v. DeHass (1967), 10 Ohio St.2d 230, 227 N.E.2d 212, paragraph one of the syllabus. The trial court was free to believe all, part, or none of the testimony regarding the suspicions that appellant was engaged in an extramarital affair. Rodgers v. Rodgers (Sept. 2, 1997), 10th Dist. Nos. 96APF01-1333, 96APF01-67.
{¶21} Appellant further objects to the testimony of a third party, John Stomps, that appellant had engaged in sexual acts with other women during the course of his marriage to appellee and that appellant, in an unrelated prior civil case, had allegedly told Mr. Stomps that he would lie under oath in that prior proceeding.
{¶22} The admission or exclusion of evidence rests in the sound discretion of the trial court. State v. Sage (1987), 31 Ohio St.3d 173, 180, 510 N.E.2d 343. Our task is to look at the totality of the circumstances in the particular case under appeal, and determine whether the trial court acted unreasonably, arbitrarily or unconscionably in allowing or excluding the disputed evidence. State v. Oman (Feb. 14, 2000), Stark App. No.1999CA00027. As a general rule, all relevant evidence is admissible. Evid.R. 402. However, Evid.R. 608(B) states in relevant part:
{¶23} The testimony of John Stomps was not "reputation or opinion" evidence concerning the appellant's veracity. Rather, the evidence was of specific instances of appellant's conduct. The testimony was not brought out on cross examination, but, rather was introduced in appellee's case in chief. Accordingly, such testimony was not admissible because it was not relevant to any of the issues in the case. State v. Leuin (1984), 11 Ohio St.3d 172, 174, 464 N.E.2d 552, 554.
{¶24} However, while the record reflects a limited number of instances of improper evidence being heard by the trial court, in a bench trial, we presume that the trial court relied on only relevant, material, and competent evidence in arriving at its judgment absent a showing to the contrary. State v. Richey (1992), 64 Ohio St.3d 353, 357, 595 N.E.2d 915. In other words, the use by the appellee of evidence of the appellant's untruthfulness is improper and constitutes error, but while such error may be cause for reversal because of its prejudicial effect on a jury, it must affirmatively appear that in a bench...
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